Hensler v. City of Anacortes

Mackintosh, J. — In 1923, the city of Anaeortes passed an ordinance for the improvement of 8th street in that city,, a street running east and west, from the west line of First avenue westerly to the west line of “F” avenue, and created a local improvement district and established its boundaries, the ordinance providing that an assessment for the improvement should be made upon the property specially benefited, being the property “adjacent to or abutting upon” 8th street, “lying within a distance back of the center of the respective blocks from the marginal line thereof,” thus following the provisions of the statutes relating *185 to improvements of this kind. The respondents were the owners of the northwest and southwest corners of 8th street and “F” avenue. Under the ordinance the intersection of 8th street and “F” avenue was paved, no portion of “F” avenue being paved. The improvement stopped at the west margin of the intersection. The city attempted to assess respondents’ property, and this action was commenced to enjoin the collection of that assessment, on the ground that the respondents’ property lies outside the local improvement district. Ordinances ordering local improvements arise, either upon the petition of property owners, or upon resolution of the city council. (Rem. Comp. Stat., § 9359) [P. C. § 996]. If the ordinance is initiated by petition, the assessment district created does not extend beyond the termini of the improvement (Rem. Comp. Stat., § 9360) [P., C. § 997]. If the improvement is initiated by resolution, nothing is said about the termini, but the property assessed shall include that which is “specially benefited thereby.” (Rem. Comp. Stat., § 9361) [P. C. § 998]. Rem. Comp. Stat., § 9365 [P. C. § 1001], provides for the formation of the assessment district, whether the improvement was initiated under petition or by resolution, and in the absence of an extended district, which was not created by the ordinance here under investigation, the “district shall include all the property between the termini of said improvement abutting upon, adjacent, vicinal or proximate to the street, . . . to be improved to a distance back from the marginal lines thereof to the center line of the blocks facing or abutting thereon,” and such property “shall be considered and held to be the property and to be all the property specially benefited by such local improvement, and shall be the prop *186 erty to be assessed to pay the cost and expense thereof.” The question here, then, is whether the respondents’ property is property specially benefited as defined in this section. This depends upon whether the respondents’ property abuts upon the improvement. It is conceded by counsel for both parties that this property does not face the improvement, but it is the contention of the city that it does abut upon it. There can be no question that the respondents ’ property is beyond the western terminus of the improvement. If it is assessable, it is by reason of the fact that the statute provides that property, back of the center line of the block “facing or abutting upon the improvement,” is specially benefited and consequently subject to assessment. Century Dictionary defines abut, “To touch at the end; be contiguous; join at a border or boundary; terminate; rest: with on, upon, or against before the object; as, his land abuts upon mine; the building abuts on the highway; the bridge abuts against the solid rock.” 1926 Merriam Series, Webster’s New International Dictionary defines abut, “To project; to terminate or border; to be contiguous ; — with on, upon, or against; as, his land abuts on the road. Usually abut implies contact, but this is not always so. To end at; to border on; to reach or touch with an end; as, two lots abutting each other.” Under these definitions, and giving weight to the general rule that every doubt should be resolved against the power of a municipality to assess and tax and in favor of the citizen, it would seem that the respondents’ property cannot be said to abut upon this improvement. A corner of each of these tracts of land touches the corner of the paved intersection, but the *187 property does not terminate npon, or border npon, nor is it contiguous to; neither does it end at, or touch, or reach with an end, this improvement. The statute intended to make assessable property which had an end, either face, side or rear, upon the improvement, and did not contemplate the assessment of property beyond the improvement which might touch its terminal corner. There are other reasons in the statute, which are conclusive against the interpretation sought by the city, and they are these: The statute provides that the “district shall include all the property between the termini of said improvement.” Respondents’ property is not between the termini; it is beyond the western terminus. And, secondly, the statute provides for the assessment of property “back from the marginal lines thereof,” again clearly manifesting the intention not to include property beyond the terminal lines, but merely that which either faces or abuts the marginal lines. For these reasons, it is clear that the trial court was correct in relieving the respondents from assessments under this ordinance. City of Chillicothe ex rel. Meek v. Henry, 136 Mo. App. 468, 118 S. W. 486; City of Rolla v. Schuman, 189 Mo. App. 252, 175 S. W. 241; O’Leary v. City of Glens Falls, 200 N. Y. 218, 93 N. E. 513, 21 Ann. Cas. 633; 2 Elliott on Roads and Streets (3rd ed.), § 683. The judgment is affirmed. Tolman, C. J., Mitchell, and Askren, JJ., concur.